Substitution and abatement: discretionary exemption is limited, and delay condonation depends on a bona fide showing of sufficient cause.

Order XXII Rule 4(4) confers a discretionary exemption from substituting the legal representatives of a deceased respondent, but it is unlikely to be exercised where the deceased had a right to contest the appeal and notice had already been served during his lifetime. Delay in seeking substitution and setting aside abatement is governed by Articles 120 and 121 of the Limitation Act, 1963, and condonation under Section 5 requires a reasonable, bona fide explanation showing sufficient cause. Where the explanation is unsupported, implausible, and marked by negligence or lack of diligence, the delay is not condonable and the abatement application fails.

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Issues: (i) Whether the appellants were entitled to exemption from substituting the legal representatives of the deceased respondent under Order XXII Rule 4(4) of the Code of Civil Procedure, 1908. (ii) Whether the delay in filing the application to set aside abatement and substitute the legal representatives of the deceased respondents could be condoned on the basis of sufficient cause.

Issue (i): Whether the appellants were entitled to exemption from substituting the legal representatives of the deceased respondent under Order XXII Rule 4(4) of the Code of Civil Procedure, 1908.

Analysis: The power under Order XXII Rule 4(4) is discretionary. Although the trial court decree against the deceased respondent was ex parte, the first appellate court had dismissed the appeals on contest against all respondents, and notice of the second appeal had been served on the deceased respondent during his lifetime. In these circumstances, the deceased respondent had a right to contest the appeal, and his legal representatives, if substituted, would have had the same right. The facts did not justify the exercise of discretion to dispense with substitution.

Conclusion: The appellants were not entitled to exemption from substitution of the legal representatives of the deceased respondent.

Issue (ii): Whether the delay in filing the application to set aside abatement and substitute the legal representatives of the deceased respondents could be condoned on the basis of sufficient cause.

Analysis: Limitation for substitution and for setting aside abatement was governed by Articles 120 and 121 of the Limitation Act, 1963, and condonation required sufficient cause under Section 5 of that Act. The explanation offered for the long delay was found to be neither reasonable nor plausible. The record showed knowledge of the deaths, lack of diligence, and no convincing material to support the claimed illness or inability to act. The conduct of the appellants was treated as negligent, and the explanation failed the test of sufficient cause.

Conclusion: The delay was not condonable and the application to set aside abatement failed.

Final Conclusion: The application for substitution and setting aside abatement was rejected, resulting in abatement of the appeal against the deceased respondents and dismissal of the appeal.

Ratio Decidendi: Exemption under Order XXII Rule 4(4) is discretionary and will not be granted where the deceased respondent had a right to contest the appeal, while condonation of delay in setting aside abatement requires a reasonable and bona fide explanation demonstrating sufficient cause and absence of negligence.

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